When the Feds Ignore the Law

In 1996, Congress banned “sanctuary laws,” by which some city and state governments prohibit their employees from communicating with the federal government about the status of an illegal alien. No local official, Congress declared, could be restricted from sending information to, or soliciting information from, federal immigration authorities about individual aliens, because it was in the national interest that local and federal authorities cooperate in the “apprehension, detention or removal of [illegal] aliens.”

To assist in this cooperation, the Immigration and Naturalization Service created the Law Enforcement Support Center to provide police officers and sheriffs’ deputies with information on the immigration status of aliens whom they may encounter, including during traffic stops.

A less-noticed section of S.B. 1070 allows the state to detain illegal aliens, when the federal government declines to.

The central provision of Arizona’s controversial law, S.B. 1070, affirms what Congress already presupposes: the power of local law enforcement officers to inquire into someone’s immigration status, including seeking information from the federal government. Under Section 2 of S.B. 1070, a police officer or sheriff’s deputy can question someone about his immigration status and confirm that status with the Law Enforcement Support Center, but only if the officer has reasonable suspicion that the person is in the country illegally, and only if confirming the status is practicable. Such an inquiry may occur only during a lawful stop to investigate a nonimmigration offense.

Section 2 does not conflict with the federal government’s authority over immigration matters and is thus constitutionally unproblematic. A more interesting question would arise if, after confirming an alien’s illegal status, the feds tell an Arizona law enforcement officer that they have no interest in detaining him — a position consistent with the current administration’s de facto amnesty for most illegal aliens — but Arizona goes ahead and penalizes him anyway under another section of S.B. 1070: Section 3. Section 3 makes it a state, as well as federal, crime, to violate the federal requirement that a legal alien always carry his immigration papers.

This section provides the same penalties — a small fine or a brief jail stint — as the federal registration law. Section 3 does not conflict with Congressional objectives embodied in federal immigration law, but arguably, by penalizing an alien whom the feds would prefer to leave completely alone, Arizona authorities may set up a conflict with executive branch policy. To be sure, S.B. 1070 grants Arizona no power to deport an illegal alien, just to fine or jail him. Nevertheless, if the president decides not to enforce the immigration laws against a particular illegal alien or against most illegal aliens, are the states free to prosecute them under a bootstrap version of federal law? The answer is not obvious, even though there is case law aplenty holding that states do have authority to regulate and criminalize matters that bear on immigration.

Unfortunately, U.S. District Judge Susan Bolton enjoined S.B. 1070 on the Justice Department’s facial challenge, in flagrant violation of the exacting standards for such facial challenges, so we don’t know how Arizona would have reacted to a federal request to release an illegal alien whom local officers had lawfully stopped. I would allow the law to operate, and in assessing its impact, would grant wide latitude to the states to follow through on Congressional intent that “illegal aliens do not have the right to remain in the United States undetected and unapprehended.”